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Wednesday, December 9, 2009

Supreme Court Returns with Sotomayor's Debut

The Supreme Court issued its first opinions (not counting per curiams) of the Fall 2009 term yesterday. Two of the cases were kinda sorta labor and employment law-related. Admittedly, the holdings are more generally applicable to agency review and litigation generally... but it's all we've got from the Supreme Court right now so I'm going with it!

Mohawk Industries, Inc. v. Carpenter

First, Justice Sotomayor issued her first Supreme Court opinion in Mohawk Industries, Inc. v. Carpenter (.pdf). The case involved an employee who alleged he was unlawfully terminated for refusing to recant statements he made about his employer's use of "undocumented immigrants." Sounds employment law-related enough, right?

Sadly, the holding (per the syllabus) was simply that

"Disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine."

So you can't immediately appeal a decision compelling disclosure of documents claimed to be attorney-client privileged, resolving a circuit split. Not too employment law-y but good to know nonetheless.

The New York Times noted an interesting tidbit from Mohawk - It was apparently the first time a Supreme Court opinion used the term "undocumented immigrant" as opposed to "illegal immigrant" (used in a dozen previous opinions).

Every Justice concurred in the judgment but Justice Thomas weighed in with his own concurring opinion that, as the NYT notes, was highly critical of the new Justice, Sotomayor. Rather than relying solely on the appellate rules in place, Sotomayor also injected some cost-benefit analysis into the mix. Per Justice Thomas:

"I would leave the value judgments the Court makes in its opinion to the rulemaking process.... [limiting] the doctrine that, with a sweep of the Court’s pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea."

Union Pacific v. Brotherhood, involved a dispute under the Railway Labor Act which requires employees and carriers to attempt settlement "in conference" prior to arbitration before the National Railroad Adjustment Board (NRAB).

In this case, there was no evidence of the pre-arbitration conference so the NRAB dismissed for lack of jurisdiction. The Supreme Court held unanimously that this was incorrect. The Board may prescribe rules but it is Congress that controls the Board's jurisdiction. The conferencing requirement was procedural not jurisdictional hence the NRAB erred in dismissing the case.

There was a side-issue dealing with the Due Process appealability of NRAB decisions. The Supreme Court punted on that issue having resolved the matter on statutory grounds.

Image: The 2009 United States Supreme Court - Public Domain as a work of the United States Federal Government.

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Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.